In a letter sent Wednesday to Secretary of State John Kerry, the group Cause of Action said Kerry has the legal obligation to get copies of emails Powell sent and received through his personal AOL account during his tenure as secretary of state.
The group's Freedom of Information Act request includes any other internal State Department records detailing the Department’s efforts to get Powell to turn over AOL emails from his service as George W. Bush's first secretary of state.
In a separate FOIA request to archivist of the United States David Ferriero, the group asked for copies of any documents the National Archives sent to Powell giving him permission to conduct State Department business through a private email account, as well as any actions the Archives has taken to obtain copies of those emails.
The effort to secure Powell's private emails is separate from the ongoing controversy surrounding former Secretary of State Hillary Clinton's private emails.
Clinton sent and received emails during her tenure as secretary of state through a private server located at her Chappaqua, New York home.
On Sept. 2, the FBI released a report of its investigation into Clinton's handling of department emails. The FBI said her actions were "extremely careless," but did not recommend any criminal charges against her.
The State Department has made little effort to get copies of Powell’s emails beyond a written request, which Powell ignored, according to Cause of Action, a nonprofit public interest law firm that focuses on government accountability.
A May 2016 report from the State Department’s inspector general’s office said Powell had publicly stated he used a personal AOL account to send and receive emails from State Department staff, ambassadors and “foreign minister colleagues.”
“Secretary Powell's representative advised the Department in 2015 that he did not retain those emails or make printed copies,” investigators said.
In testimony before the House Committee on Government Oversight and Reform on Sept. 8, Under Secretary of State Patrick Kennedy said his agency had contacted Powell about the emails on Powell’s AOL account, but learned the account was no longer active.
Kennedy’s office sent a letter to Powell asking him to contact AOL to see if copies of the emails still existed on their servers, but, Kennedy said, “we never received a response to that request.”
Cause of Action says the State Department let the matter drop, despite a National Archives request that the State Department contact AOL directly to see if the files were accessible.
Under the Federal Records Act, all papers created by federal agency personnel must be retained and deposited with the National Archives. Email communications were added to the list off records to be retained in 1995.
In the State Department inspector general’s report, investigators said the law applied to all of Powell’s emails, including those from his AOL account.
“Secretary Powell should have surrendered all emails sent from or received in his personal account that related to Department business,” investigators said.
“Because he did not do so at the time that he departed government service or at any time thereafter, Secretary Powell did not comply with Department policies that were implemented in accordance with the Federal Records Act,” investigators said.
The Cause of Action Institute says the State Department’s excuse that it has no legal authority to compel Powell to contact AOL to locate copies of his emails is incorrect.
“The position that the State Department has no legal authority to take direct action to recover Secretary Powell’s work-related emails is absurd and should not be left unchallenged,” said Cause of Action Institute vice president John Vecchione.
“American taxpayers have a substantial interest in ensuring that federal records are properly saved, archived, and available to the public through FOIA. The State Department and NARA must live up to statutory obligations designed to keep the government accountable and transparent, and to preserve a written record of the federal government for future generations,” Vecchione said.
The group says a July 2016 ruling from the U.S. Court of Appeals for the District of Columbia gives the secretary of state, and the archivist of the United States, the power to ask the attorney general to initiate legal proceedings if an official refuses to turn over official documents after leaving office.
In an opinion written by Senior Circuit Judge David Sentelle, the court held that documents created by government officials on private email servers still remain the property of the government, and cannot be shielded from FOIA requests.
“A [government] agency always acts through its employees and officials,” Sentelle said.
“If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.” Sentelle said.
Regarding Powell's emails, the State Department inspector general said “that neither he nor his representatives took any specific measures to preserve Federal records in his email account.”
“Secretary Powell’s representative told [investigators] that she asked Department staff responsible for record keeping whether they needed to do anything to preserve the Secretary’s emails prior to his departure, though she could not recall the names or titles of these staff," investigators said in their report.
"According to the representative, the Department staff responded that the Secretary’s emails would be captured on Department servers because the Secretary had emailed other Department employees,” investigators said.
The inspector general said this was an inappropriate method for preserving records, and that Powell should have “print[ed] and fil[ed] those records with the related files in the Office of the Secretary.”